1 DEPOSITIONS AND YOUR DISCOVERY PLAN BY: ROBERT E. KLEINPETER LAJ LAST CHANCE CLE CONFERENCE 12/12/2014 Table of Contents I. Introduction .................................................................................................. 2 II. Louisiana and Federal Statutes of Particular Interest ............................... 2 A. Evidence Rules ........................................................................................ 2 B. Procedural Rules ..................................................................................... 3 C. Use at Trial ............................................................................................. 4 III. Video Deposition Notice Forms .................................................................... 5 IV. Define Goals for the Deposition ................................................................... 5 A. Have a Case Discovery Plan ................................................................... 5 B. Juror Biases............................................................................................. 6 V. Deposition Protocol When Attorney Misconduct Exists .............................. 7 VI. Video Depositions by Telephone................................................................... 7 VII. Miscellaneous Suggestions ........................................................................... 7 VIII. Appendix A. Page and Line Designations ...................................................... Exhibit A B. Notice of Video Deposition (Lay Witness).................................. Exhibit B C. Notice of Video Deposition (Corporation) .................................. Exhibit C D. Motion for Protective Order ...................................................... Exhibit D
25
Embed
DEPOSITIONS AND YOUR DISCOVERY PLAN - … Deposition Notice Forms ... interest when taking video depositions. Practical considerations on how best to take such depositions will be
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
1
DEPOSITIONS AND YOUR DISCOVERY PLAN
BY: ROBERT E. KLEINPETER
LAJ LAST CHANCE CLE CONFERENCE 12/12/2014
Table of Contents
I. Introduction .................................................................................................. 2
II. Louisiana and Federal Statutes of Particular Interest ............................... 2
A. Evidence Rules ........................................................................................ 2
B. Procedural Rules ..................................................................................... 3
C. Use at Trial ............................................................................................. 4
III. Video Deposition Notice Forms .................................................................... 5
IV. Define Goals for the Deposition ................................................................... 5
A. Have a Case Discovery Plan ................................................................... 5
B. Juror Biases............................................................................................. 6
V. Deposition Protocol When Attorney Misconduct Exists .............................. 7
VI. Video Depositions by Telephone................................................................... 7
VII. Miscellaneous Suggestions ........................................................................... 7
VIII. Appendix
A. Page and Line Designations ...................................................... Exhibit A
B. Notice of Video Deposition (Lay Witness).................................. Exhibit B
C. Notice of Video Deposition (Corporation) .................................. Exhibit C
D. Motion for Protective Order ...................................................... Exhibit D
2
I. Introduction
At trial, jurors receive information from multiple sources, including the judge,
lawyers, witnesses, and demonstrative and evidentiary exhibits. Only the court can
admit evidence into the judicial record, so we, the attorneys, must take care to observe
the basic rules of evidence. Aside from the occasional stipulation, most evidence
comes in by way of lay witness testimony or expert opinion testimony.
When a witness is unable to testify in person, a deposition is usually the only
practical way to produce that evidence. But the traditional method of deposing a
witness by a court reporter generating a transcript from the attorneys’ questions and
the witness’s answers has limitations.
For example, numerous studies have shown for decades that communication
between people is mostly non-verbal. Jurors receive a huge amount of information
on an automatic level within seconds of a perceived event. If this event is an
uninspired reading of a tedious deposition, the unintended effect may be to put the
jurors to sleep.
On the other hand, a properly focused video deposition can have the opposite
result. Its effective use can engage jurors, communicate more information to a wider
age range, allow information to be retained longer, and elicit a greater emotional
response to the testimony.
This presentation will review procedural and evidentiary rules of particular
interest when taking video depositions. Practical considerations on how best to take
such depositions will be discussed. And use of video depositions for mediations, focus
groups, and trial will be demonstrated.
II. Louisiana and Federal Statutes of Particular Interest
Trial procedure is largely a matter of (great) judicial discretion with some
guidance from the evidence and civil procedure codes.
A. Evidence Rules
La. Code of Evidence article 607(D) – attacking credibility with extrinsic evidence to
show witness’ bias, interest, corruption, or defect of capacity; prior inconsistent
statements and evidence contradicting the witness’ testimony.
La. Code of Evidence article 613 – admissibility of extrinsic evidence of bias, interest,
or corruption, prior inconsistent statements, conviction of crime, or defects of capacity
after the proponent has first fairly directed the witness’ attention to the matter.
3
La. Code of Evidence article 801(D)(2) and (3) – statements which are not hearsay
and are offered against a party.
Fed. Rules of Evidence Rule 613 – admissibility of witness’ prior inconsistent
statement after witness is given opportunity to explain or deny the statement, and
adverse party is given opportunity to examine the witness about the statement.
Fed. Rules of Evidence Rule 801(d)(2) – statements that are not hearsay and are those
of an opposing party.
B. Procedural Rules
La. Code of Civil Procedure article 1434(C) – In a video deposition, the deponent can
be sworn by anyone authorized to take oaths. The oath shall be recorded on tape.
La. Code of Civil Procedure article 1440 – for non-stenographic means of taking
testimony at deposition, the notice shall designate the manner of recording,
preserving, and filing the deposition, and shall include other provisions to assure that
the recorded testimony will be accurate and trustworthy. A videotaped deposition
may be taken and used without court order just as any other deposition. A certified
shorthand reporter shall be present at the time of any videotaped deposition taken
without a court order unless waived by all parties. A party may nevertheless arrange
to have a stenographic transcription made at his own expense.
**See Brigsten v. S. Baptist Hosp., 96-2564 (La. App. 4th Cir. 12/13/96), 690
So. 2d 810, 812, holding that “a party seeking a deposition, if desirous of using
a videotape of that deposition, shall provide a disinterested professional
videographer to take the deposition.”
**But see Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552,
555 (D. Mont. 2009) and Ott v. Stipe Law Firm, 169 F.R.D. 380, 381 (E.D. Okla.
1996), holding that the federal rules permit the recording of a deposition
without the assistance of an independent videographer.
La. Code of Civil Procedure article 1443(E) – If the court finds that an objection made
during a deposition taken for trial purposes is in violation of this Article, the court
shall order the party in violation to pay for the editing or redacting of the transcript
or video, along with any other costs or sanctions the court deems appropriate unless
good cause is shown.
La. Code of Civil Procedure article 1445 – reading and signing of the transcript; a
video deposition does not have to comply with the requirements of reading and
signing by the deponents.
La. Code of Civil Procedure article 1450(A)(5) –deposition of expert witness can be
used for any purpose upon notice to all counsel.
4
La. Code of Civil Procedure article 1633.1 – The court may order live testimony of a
witness to be presented in open court by teleconference, video link, or other visual
remote technology, if the witness is beyond the subpoena power of the court or when
compelling circumstances are shown.
La. Revised Statutes § 13:4533 – allows costs of a deposition, including video
deposition, to be taxed as costs by the court.
See also Morgan v. ABC Mfr., 96-59 (La. App. 5th Cir. 1/15/97), 694 So. 2d 394,
400, rev’d on other grounds, 97-0956 (La. 5/1/98), 710 So. 2d 1077 (cost of playing
video introduced as demonstrative evidence at trial may be assessed as court costs);
Roy v. Gupta, 606 So. 2d 940, 946 (La. App. 3d Cir. 1992) (taxing as court costs the
costs of playing the video deposition at trial).
Fed. Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
Fed. Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings
C. Use at Trial
All Louisiana circuits have approved the use of video depositions at trial.
Using depositions of expert witnesses is unquestionably allowed. CCP article
Frequently in the case of lay witnesses, there is no need to play the entire video
deposition. Rather than bore the jury with Q&A’s regarding the witness’ life history,
you should only play those portions of the testimony which (1) sufficiently introduce
the witness to the jury, and (2) prove an essential element of your case. Prior to trial,
designate the pages and lines of transcript testimony and include the time frames of
the video. (See example from the deposition of Defendant Driver, Exhibit “A”). Send
the page and line designations to opposing counsel. If counsel cannot agree to edits
before trial, provoke a hearing in advance of trial so the judge can rule on which
portions are to be admitted. Otherwise, the editing of the video deposition must take
place during a break in the trial.
III. Video Deposition Notice Forms
When noticing a video deposition, specify “video deposition” in the title and in
the body of the notice. La. Code of Civ. P. art. 1440. Attached are two examples—
one for a lay witness (Exhibit “B”) and one for a corporate deposition (Exhibit “C”).
IV. Define Goals for the Deposition
A. Have a Case Discovery Plan
Initial discovery usually includes interrogatories, requests for production, and
requests for admissions. These tools, along with the initial investigation and the
Petition and Answer, provide insight into the theories of recovery and the defenses to
the case. Also, draft a jury verdict form and basic jury instructions on the significant
legal issues. With this information in hand, you can plan how to sequence and take
depositions for the case.
There is nothing wrong with asking standard questions of a witness along the
lines of who, what, when, where, and how. Often, this information is necessary to
provide context. You certainly want to ask these types of questions to gather the
background information for your opening statement, which should be delivered in a
present tense narrative form. But this kind of checklist is not enough. To take
exceptional depositions you must prove your causes of action, defeat the defendant’s
affirmative defenses, and expose or defeat the juror biases which exist in the case.
Do not try to analyze your deposition approach in your head. After organizing
the case information referenced above and thinking through the issues, outline the
depositions you must take to prepare the case for motion practice and trial. What are
6
the critical issues that must be proved or refuted for your client to be successful? And
remember, it is more effective if the opposing party, or a witness who is identified
with that party, admits or proves a case fact in your favor.
For example, determine which witnesses can testify about:
Facts that will support the basis for your expert’s conclusions.
Facts that allow you to file a dispositive motion.
Facts that allow you to defeat a dispositive motion.
Facts that allow you to file or defeat a motion in limine or Daubert motion.
Facts that show an affirmative defense is baseless.
Facts that will support your client’s harms and losses (for general and special
damages).
Facts that address, in a positive way for your client, or a negative way for the
opposing party, the juror biases below.
Be proactive, not reactive, with your discovery plan. Find and develop
testimony that will help you win the case on liability, causation, and damages. And
even when you are defending a deposition, question the deponent about facts that
will help prove your case.
B. Juror Biases
For well over a decade, research (The Jury Bias Model, Greg Cusimano and
David Wenner) has shown jurors hold five important beliefs that may affect every
case. These attitudes are present in any case tried anywhere in the United States—
and certainly any courtroom in Louisiana. Psychologists refer to these beliefs as
biases. These beliefs/biases will emerge in discussions about the facts of a case no
matter what type of case you are trying. The biases you will see in your case are:
1. Accountability/personal responsibility
2. Anti-plaintiff
3. Suspicion
4. Victimization
5. Stuff happens
When conducting your deposition, take care to address these biases to the
extent possible with any witness. Obviously, not every witness can testify about each
one. But many times you can ask questions in a deposition about one or more of these
biases even when the deposition was noticed for another purpose. For example, a co-
worker of the plaintiff may testify he personally observed her strong work ethic or
caring nature. Or a supervisor may testify how the plaintiff always followed safety
rules and had no reprimands in his file for violating the company’s safety procedures.
7
V. Deposition Protocol When Attorney Misconduct Exists
See Motion for Protective Order in drunk driving case (Exhibit “D”).
See also the recent opinion from an Iowa federal district court, Security Nat.
Bank of Sioux City, Iowa v. Abbott Labs., __ F. Supp. 2d __ (2014). The district judge
took it upon himself to file a sua sponte order to show cause why the court should not
sanction counsel for serious deposition misconduct, including:
(1) Excessive use of “form” objections;
(2) Numerous attempts to coach witnesses; and
(3) Ubiquitous interruptions and attempts to clarify questions posed by the
examiner.
As a sanction, the judge ordered the offending counsel to write and produce a training
video addressing the rationale of the court’s opinion and providing specific steps
lawyers must take to comply with its rationale in future depositions.
VI. Video Depositions by Telephone
Travel to another state is expensive and time consuming, sometimes
excessively so, considering the size of the case. Think about the cost and time
effectiveness of a video deposition by telephone. All you need is a good phone
connection between you and the deponent (and any other attendees), a court reporter,
and a videographer. Alert the court reporter and videographer in advance to
transcribe or record any inappropriate conversation between counsel and the witness.
And make sure to have your exhibits marked in advance and forward them to the
court reporter. That way, when you say to the witness, “let’s now look at exhibit
nine,” everyone understands the reference and which document the deponent should
be viewing for examination.
VII. Miscellaneous Suggestions
When playing the video deposition at trial, do not have the transcript
testimony scrolling across the bottom of the video. Jurors’ eyes will be drawn
to the scrolling text, and they will miss the key benefit of the video—the
deponent’s body language.
As a precaution, introduce into evidence both the video and the written
transcript.
If you make video depositions a common element of your practice, consider
investing in trial presentation software which allows you to easily create and
arrange clips of the video deposition. This will be important if the court
sustains opposing counsel’s objections to certain clips of the deposition which
are different from your proposed page and line designations.
1
Deposition of Defendant Driver – Page and Line Designations 00:00 – 01:19 p. 6, ll. 8-9 Q Please tell us your name. A **************. 03:20 – 04:11 p. 8, ll. 3-25 Q And so you left your Riverbend home, usually, and drove down the River Road? A Yes. Q And that would be driving north on the River Road? A Yes. Q So the Mississippi River would be on your left, you would be driving north? A Correct. Q And then you would turn at what street? A Oklahoma. Q And so you would turn and head what direction? A I make a right turn. Q Okay. And do -- and then you would head generally east? A Yes. Q Okay. And so after going down Oklahoma, what -- what would be the first stop sign? A At Oklahoma and Nicholson Drive. Q And was this something you had -- had been doing for quite some time? A Yes. 06:24 – 07:01 p. 10, ll. 22-25; p. 11, ll. 1-5 Q So the best you can give us right now is you probably left around 6:30? A Yes. Q And how long does it take you to get from Riverbend where your home is, to the intersection of Nicholson and Oklahoma? A Depending on how slow the traffic is, how heavy the traffic is on River Road, maybe ten minutes or less. 12:14 – 12:44 p. 15, ll. 11-24 Q Okay. Now, when did you -- when did you get your license? A I don't know the year. I was in high school. Q Okay. And when did you first learn what to do at a stop sign? A When I first started taking driver's ed and studying for the test. Q Okay. What -- what were you taught to do at a stop sign? A Stop. Q Anything else? A Look both ways. Don't move until it's -- it is clear.
EXHIBIT A
2
15:23 – 15:31 p. 18, ll. 2-4 Q First, you were driving what vehicle at the time? A A red Expedition. 18:08 – 18:28 p. 20, ll. 4-7 Q So here on Page 2 of Exhibit 5, where did you stop at the intersection of Oklahoma and Nicholson? A In front of the stop sign. 18:43 – 18:59 p. 20, ll. 14-19 Q Your intent was to get from one side of Oklahoma across completely Nicholson, correct? A Yes. Q So do you know how many lanes of travel that is? A Four. 26:45 – 27:01 p. 27, ll. 21-25; p. 28, ll. 1-2 Q How long did you wait? A I don't know how many minutes, but I do remember that the -- there was a lot of traffic. And so I sat a good wait. You know, as if there were a few cars passing, it wouldn't have taken as long, but there was -- the traffic was heavy out on Nicholson that morning. 27:28 – 27:43 p. 28, ll. 17-20 Q So at 6:40 a.m., you're at the corner of Nicholson and Oklahoma. And there is traffic going both ways on Nicholson, correct? A Correct. 30:00 – 30:22 p. 30, ll. 15-23 Q Now, it says here, the next sentence, "I pulled out and was hit by the truck." You see, you see that sentence? A Yes. Q Okay. And the truck we have talked about, is that the Hummer? A Yes. Q The yellow Hummer? A Yes. 35:01 – 35:17 p. 35, ll. 1-6 Q Okay. So you took your foot off of the brake. A Yes. Q And you then put it where as you began to enter Nicholson? A On the accelerator.
3
35:26 – 35:33 p. 35, ll. 12-17 Q So you -- you chose to put your foot on the brake, correct? A Correct. Q And then you chose to put it on the accelerator? A Correct. 36:54 – 37:00 p. 36, ll. 20-22 Q And do you know how much damage was done to your vehicle? A Quite a bit. It was totaled. 37:10 – 37:40 p. 37, ll. 1-12 Q Okay. Have you ever talked to the driver of the Hummer? A No, I haven't. Q Do you know anything at all about the driver of the Hummer? A No. Q Have you ever called to -- to check up on the driver of the Hummer? A No, I didn't think that was my responsibility. That's why I have insurance, and whoever is affiliated with the insurance agency. Did he call to check up on me? I don't think he did. 40:42 – 40:47 p. 40, ll. 8-10 Q Do you accept sole responsibility for causing the accident? A No, I don't. 41:50 – 42:02 p. 41, ll. 12-15 Q Okay. Do you -- I mean, using your experience as a driver, you have been driving at – in November 2009, how many years have you been driving? A Since I was a teenager. 46:13 – 46:22 p. 44, ll. 12-15 Q But if your vehicle is in Nicholson, which street do you understand is the favored street Oklahoma or Nicholson? A Nicholson. 48:59 – 49:05 p. 46, ll. 18-20 Q All right. So you look left and then you look right, and then you went forward? A Yes.
1
NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
SUIT NUMBER: XXX,XXX DIVISION: X
PLAINTIFF
versus
DEFENDANT
NOTICE OF VIDEO DEPOSITION UPON ORAL EXAMINATION OF JANE SMITH
TO: Jane Smith
Through her counsel of record,
Big Defense Firm
123 Main Street
Baton Rouge, Louisiana 70801
PLEASE TAKE NOTICE that Plaintiff, through undersigned counsel, will take the video
deposition of JANE SMITH at the offices of Big Defense Firm, 123 Main Street, Baton Rouge,
Louisiana 70801, on Friday, May 23, 2014, at 9:00 o’clock a.m.
The deposition will be taken for all lawful purposes in accordance with the Louisiana Code
of Civil Procedure before an official court reporter authorized to administer oaths and by audio
visual means. You are invited to attend and participate as you deem fit and proper.
Respectfully submitted,
KLEINPETER & SCHWARTZBERG, L.L.C.
BY: ____________________________________
Robert E. Kleinpeter (#07448)
6651 Jefferson Highway
Baton Rouge, Louisiana 70806
(225) 926-4130 Telephone
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Notice of Video Deposition Upon
Oral Examination of Jane Smith has this __ day of ______________, 2014 been served on counsel
for all parties in these proceedings by first class U.S. mail, postage prepaid and properly addressed.
_________________________________
Robert E. Kleinpeter
EXHIBIT B
1
NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
SUIT NUMBER: XXX,XXX DIVISION: X
PLAINTIFF
versus
DEFENDANT
NOTICE OF LOUISIANA CODE OF CIVIL PROCEDURE ARTICLE 1442 VIDEO
DEPOSITION UPON ORAL EXAMINATION OF DEFENDANT CORPORATION
TO: Defendant Corporation
Through its counsel of record,
Big Defense Firm
123 Main Street
Baton Rouge, Louisiana 70801
PLEASE TAKE NOTICE that Plaintiff, through undersigned counsel, will take the video
deposition of DEFENDANT CORPORATION, through one or more officers, directors, or
managing agents or other persons who consent to testify on its behalf or bind said corporation in
accordance with Louisiana Code of Civil Procedure article 1442.
The deposition will be taken at the offices of Big Defense Firm, 123 Main Street, Baton
Rouge, Louisiana 70801, on Friday, May 23, 2014, at 9:00 o’clock a.m., and will continue until
completed.
The deposition will be taken for all lawful purposes in accordance with the Louisiana Code
of Civil Procedure before an official court reporter authorized to administer oaths and by audio
visual means. You are invited to attend and participate as you deem fit and proper.
The subject matters contained in Exhibit A will be discussed. Each person selected on
behalf of Defendant Corporation is also subject to examination as to his/her personal knowledge.
Respectfully submitted,
KLEINPETER & SCHWARTZBERG, L.L.C.
BY: ____________________________________
Robert E. Kleinpeter (#07448)
6651 Jefferson Highway
Baton Rouge, Louisiana 70806
(225) 926-4130 Telephone
EXHIBIT C
2
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Notice of Louisiana Code of Civil
Procedure Article 1442 Video Deposition Upon Oral Examination of Defendant Corporation has
this __ day of ____________, 2014 been served on counsel for all parties in these proceedings by
first class U.S. mail, postage prepaid and properly addressed.
_________________________________
Robert E. Kleinpeter
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
DOCKET NO.: XXX,XXX DIVISION X
PLAINTIFF
vs.
DEFENDANT
MOTION FOR PROTECTIVE ORDER ON BEHALF OF PETITIONER
NOW INTO COURT, through undersigned counsel, comes Petitioner, who respectfully
requests that the Court enter a protective order governing all future depositions in the above
entitled and numbered case on the following terms and for the following reasons:
1.
Several depositions have been taken in this matter at which all parties substantially adhered
to the rules outlined by article 1443 of the Louisiana Code of Civil Procedure, to wit, by
“conduct[ing] themselves as required in open court” and stating objections “concisely and in a
non-argumentative and non-suggestive manner.” As a result, deponents understood the questions
clearly and provided helpful information untainted by the direct or indirect intervention of counsel.
2.
Circumstances changed at the deposition of defendant John Doe. Mr. Doe’s attorney
repeatedly violated the rules set forth in article 1443 with the result that the witness was either
confused and could not provide adequate answers or directly echoed counsel’s speaking objection.
Instead of contacting the Court during the deposition or temporarily terminating the deposition to
seek judicial relief, counsel for petitioner attempted to elicit as much information as possible in an
effort to keep discovery on track.
3.
Future depositions will be taken of witnesses located in or from the State of Ohio, for
example, and in all probability defended, at least in part, by attorneys from that state who have
recently been added as counsel of record. A protective order will alert all counsel, those admitted
to the bar of Louisiana and those who are not, that Louisiana procedure will govern all future
EXHIBIT D
depositions and that the rules of article 1443 will be enforced. A protective order now will obviate
the necessity of obtaining telephonic rulings from this Court mid-deposition, or, in the alternative,
the time consuming and expensive process of recessing a deposition for clarification hearings in
New Orleans and then resuming them at a later date.
4.
Petitioner requests a protective order be entered governing all future depositions and setting
forth the following rules:
(1) Counsel will limit any objections to those pertaining to a testimonial privilege or to the
form of the question;
(2) Counsel will not, through an objection, suggest an answer or engage in argument;
(3) Any other objection is reserved until trial without the necessity of counsel making an
objection;
(4) All counsel shall cooperate with each other, be courteous to each other and the
deponent, and otherwise conduct themselves as required in open court; and
(5) Any violation of this protective order shall subject the violator to the immediate risk of
contempt of court and sanctions.
Respectfully submitted,
KLEINPETER & SCHWARTZBERG, L.L.C.
6651 Jefferson Highway
Baton Rouge, Louisiana 70806
Tel: (225) 926-4130
Fax: (225) 929-9817
By: ___________________________________
Robert E. Kleinpeter
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Motion for Protective Order on Behalf of
Petitioner has this ____ day of December, 2012, been served on counsel for all parties in these proceedings
by e-mail.
_________________________________
Robert E. Kleinpeter
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
DOCKET NO.: XXX,XXX DIVISION X
PLAINTIFF
vs.
DEFENDANT
ORDER
Considering the above and foregoing:
IT IS HEREBY ORDERED that Plaintiffs and Defendants show cause on the ____ day of
______________, 2013, at ____ o’clock __ .m., why a protective order should not be entered herein
governing all future depositions and setting forth the following rules:
(1) Counsel will limit any objections to those pertaining to a testimonial privilege or to the form
of the question;
(2) Counsel will not, through an objection, suggest an answer or engage in argument;
(3) Any other objection is reserved until trial without the necessity of counsel making an objection;
(4) All counsel shall cooperate with each other, be courteous to each other and the deponent, and
otherwise conduct themselves as required in open court; and
(5) Any violation of this protective order shall subject the violator to the immediate risk of
contempt of court and sanctions.
New Orleans, Louisiana, this ______ day of ___________________________, 2012.
_______________________________________________
JUDGE
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
DOCKET NO.: XXX,XXX DIVISION X
PLAINTIFF
vs.
DEFENDANT
MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
ON BEHALF OF PETITIONER
MAY IT PLEASE THE COURT:
I. Introduction
The substantive rules for taking depositions are relatively simple and straightforward. Three rules
pertinent to this motion for protective order are:
1. Any objection shall be stated concisely and in a non-argumentative and non-suggestive
manner.1
2. Counsel shall cooperate with and be courteous to each other and to the witness and conduct
themselves as required in open court.2
3. Counsel may instruct a deponent not to answer for only four reasons:
a. When necessary to preserve a privilege,
b. To enforce a limitation on evidence imposed by the court,
c. To prevent harassing or repetitious questions, or
d. To prevent questions which seek information that is neither admissible at trial nor
reasonably calculated to lead to the discovery of admissible evidence.3
Depositions have such restrictions because it is within the Court’s, not counsel’s, authority to decide what
evidence is admissible. La. Code of Evid. art. 104. Because depositions occur without direct judicial
1 Louisiana Code of Civil Procedure article 1443(B).
2 Louisiana Code of Civil Procedure article 1443(B).
3 Louisiana Code of Civil Procedure article 1443(D).
supervision, the clear statutory bias favors free questioning of the witness and minimal participation by
counsel for the witness, with issues of admissibility to be determined later by the Court.
Discovery has proceeded apace in this consolidated litigation. Depositions of parties and
independent witnesses proceeded uneventfully and constructively until the deposition of defendant John
Doe on October 4, 2012. In that deposition, the parties stipulated that “all objections, save those as to the
form of the question and the responsiveness of the answer, are hereby reserved until such time as this
deposition, or any part thereof, may be used or sought to be used in evidence” (see Stipulation page,
attached as Exhibit A). Notwithstanding this standard stipulation, and in spite of the known rules of
deposition procedure listed above, counsel for Mr. Doe exhibited a pattern of lengthy “coaching” and
“speaking” objections which at times suggested answers to the witness and at other times appeared to
confuse him. The result was an unreasonably difficult and, at times, unconstructive deposition.
Counsel for Mr. Doe is an experienced professional but may have a different understanding than
undersigned counsel as to the rules of engagement. Counsel’s aggressive methodology appears to reflect
practice as it existed prior to cases such as MTU of North America, Inc. v. Raven Marine, Inc., 475 So. 2d
1063 (La. 1985) and the 2004 amendments to the Louisiana Code of Civil Procedure. Undersigned
counsel takes a differing view of proper current deposition practice. More importantly, a number of
depositions may occur in Ohio and be handled by, or advice provided by, Ohio counsel only specially
admitted in Louisiana for purposes of this litigation. Consequently, a protective order is required to lay
the ground rules for future depositions for all counsel, both Louisiana and Ohio. All counsel need to
understand and follow Louisiana procedural rules for taking depositions so that future depositions in this
litigation serve the purpose for which they were designed: to perpetuate witness testimony in a
cooperative, courteous, and effective manner.
While a motion for protective order technically does not require a predicate meet and confer
conference of counsel, undersigned counsel thought it best to include the issue in a Rule 10.1 conference,
hoping to avoid troubling the Court (see three Rule 10.1 conference notices, attached as Exhibit B).
Telephone conferences were held on November 27, 2012. The proposed order was sent for consideration
to all counsel later that same day (see e-mail to all counsel, attached as Exhibit C). A deadline of
December 11, 2012 was stated (see e-mail to all counsel, attached as Exhibit D); undersigned counsel has
heard nothing further; thus, the Court needs to consider the issue.
II. Argument
A. Louisiana Rules of Civil Procedure
The three aforementioned rules governing deposition practice are codified in article 1443 of the
Louisiana Code of Civil Procedure. Article 1443 was extensively amended in 2004 in response to the
growing concern about obstructionism in depositions and the loss of professionalism in the bar. Of
particular relevance to the present issue are three sentences added to article 1443(B).
Any objection during a deposition shall be stated concisely and in a non-argumentative and
non-suggestive manner. Evidence objected to shall be taken subject to the objections.
Counsel shall cooperate with and be courteous to each other and to the witness and
otherwise conduct themselves as required in open court and shall be subject to the power
of the court to punish for contempt.
The Official Comment provides further explanation and links the amendment to the rising interest
in professionalism in Louisiana and many other jurisdictions.
(a) A sentence has been added to Paragraph B providing that objections at a deposition
must be made in a concise and non-argumentative and non-suggestive manner. The purpose
of this amendment is to curtail a practice of using lengthy or “speaking” objections
designed to coach the witness or berate or argue with opposing counsel or the witness. The
language was taken from Fed. R. Civ. P. Rl. 30(d)(1). Many other states have enacted a
similar procedural rule. See Phelps Gay, Professionalism in Depositions: The Sound of